Appleton v. Kennon

• Decision Date: 31 March 1854
• Parties: APPLETON et al., Appellants, v. KENNON, Respondent.
• Court: Missouri Supreme Court

19 Mo. 637

APPLETON et al., Appellants,

v.KENNON, Respondent.

Supreme Court of Missouri.

March Term, 1854.

1. The acceptance by a creditor of the note of a third party for a debt is not prima facie an absolute payment. To have that effect, it must be agreed that it should be taken in satisfaction.

Appeal from St. Louis Law Commissioner's Court.

Action on a note commenced before a justice. The defence relied upon was, that the plaintiffs had accepted the notes of W. D. Skillman in payment of the note sued upon. The facts and the instructions are set out in the opinion of Judge Ryland. After a judgment for the defendant, the plaintiffs appealed.

D. W. Hill, for appellants.

The instruction given by the court left out of view the real question in the case, which was, whether Skillman's note was accepted by the plaintiffs in full satisfaction and payment of the note sued upon.

H. Hitchcock, for respondent.

The instructions, taken together, fairly present the issue to the jury. The second instruction given for the plaintiffs informed the jury that the plaintiffs could recover if they accepted the notes of Skillman merely as collateral security. They must have received the notes either as collateral security, or in payment. Where an error in an instruction is cured by another instruction given, this court will not reverse. 13 Mo. 286; Ib, 308; 15 Mo. 278; Ib. 315.

RYLAND, Judge, delivered the opinion of the court.

The main question in the case involves the propriety of the instructions given by the court to the jury.

There was no dispute about the note, nor the partnership of the plaintiffs. The defendant took upon himself to avoid the note by showing that it had been paid or settled. To do this, he introduced W. D. Skillman, who testified that, by an agreement with the defendant, of which the plaintiffs were informed, he assumed defendant's liabilities to plaintiffs and others, including the note sued on here.

Plaintiffs agreed to receive defendant's draft on Skillman, accepted by Skillman, for said liabilities; but this arrangement was not carried out, Soon after this arrangement, Skillman saw plaintiffs in New York and made a settlement with them of his own liabilities to them. In this settlement were included the liabilities of the defendant, consisting of this note and an open account. Plaintiffs gave Skillman a “statement” in writing of the balance struck on settlement made between them; among the items debited to Skillman, in said statement, are two notes of his own, then due and unpaid, and the note here sued on and the open account, amounting in all, with the other items, to the sum of $1400 11. Skillman is credited in this statement with his own three new notes, together with some articles of merchandise returned; these new notes, payable at sixty and ninety days, and at four months, each for the sum of $444 58, making in all, with the returned articles, $1400 17. It was Skillman's own proposal to plaintiffs to renew his own unpaid notes, settle his own open account with them, settle defendant's note with them for $106 57, and also defendant's open account with them for $101 27, by giving plaintiffs his own three notes for $444 58 each, as above stated, which proposition plaintiffs accepted. This agreement was carried out, and the above statement was handed to Skillman by the plaintiffs. Skillman asked plaintiffs (or one of the appellants) for defendant, Kennon's note, but he declined to give it up, saying he did not know whether it was worth any thing or not, but he believed he would hold on to it. Nothing was said about the terms on which he would keep the note or any liability of Kennon's thereafter. Skillman afterwards paid two of these three notes; the other is yet unpaid, he having failed in business. The plaintiffs introduced evidence tending to show that, at the time of the settlement mentioned by Skillman, plaintiffs refused to give up Kennon's note until Skillman's notes, then given, should be paid; that plaintiffs then declared they should still hold Kennon responsible, and they did not take Skillman's note except as collateral security for defendant's liability; that defendant's note was given for books purchased by him of plaintiffs, and the same had never been paid by any one. Skillman recalled, stated that the account given by plaintiff's witness, as above, was not the true one; nor was the conversation mentioned between them correctly stated.

Upon this state of the evidence, the court instructed he jury as follows:

The jury are instructed that the note sued on is prima facie evidence itself of the demand.

2. If the jury find from the evidence, that the plaintiffs only received the notes of W. D. Skillman as collateral security for the notes of the defendant, they will find for the plaintiffs.

3. The jury are instructed that the plaintiffs' right to recover in this case cannot be impaired by any private arrangement or agreement between the defendant and Mr. W. D. Skillman, to which the plaintiffs were not parties.

The court gave the following of its own motion:

“If the Jury shall believe from the evidence, that the witness, Skillman, assumed the payment of the amount of the defendants' indebtedness to the plaintiffs, with the consent of the plaintiffs, and in pursuance of such assumption, did execute and deliver to the plaintiffs his promissory notes, which notes included the...